ancianita
ancianita's JournalTheme For The Coming Year
As Charlie Sykes says: "Violence is as intrinsic to fascism as free speech is intrinsic to democracy."
Believe that under pressure, democracy will become a shining diamond.
Pressure pushing down on me
Pressing down on you no man ask for
Under pressure - that burns a building down
Splits a family in two
Puts people on streets
It's the terror of knowing
What this world is about
Watching some good friends
Screaming let me out
Pray tomorrow - gets me higher
Pressure on people - people on streets
Chippin' around - kick my brains around the floor
These are the days it never rains but it pours
People on streets - people on streets
It's the terror of knowing
What this world is about
Watching some good friends
Screaming let me out
Pray tomorrow - gets me higher
Pressure on people - people on streets
Turned away from it all like a blind man
Sat on a fence but it don't work
Keep coming up with love but it's so slashed and torn
Why - why - why
Love
Insanity laughs under pressure we're cracking
Can't we give ourselves one more chance
Why can't we give love one more chance
Why can't we give love
Cause love's such an old fashioned word
And love dares you to care for
The people on the edge of the night
And love dares you to change our way of
Caring about ourselves
This is our last dance
This is our last dance
This is ourselves
Under pressure
Under pressure
Pressure
Adam Gopnik Offers What Heals Democracy Through His Review of Two Books
The New Yorker (Oct 2 2023)https://www.newyorker.com/magazine/2023/10/02/democracy-awakening-heather-cox-richardson-book-review-the-civic-bargain-how-democracy-survives-brook-manville-and-josiah-ober
To Fix Democracy, First Figure Out Whats Broken --
Liberal democracy can prevail when liberals lose. But it cant accommodate those who reject the basic civic bargain.
By Adam Gopnik
September 25, 2023
Books reviewed
Heather Cox Richardson's Democracy Awakening: Notes on the State of America (Viking)
Brooke Manville and Josiah Ober's The Civic Bargain (Princeton)
Gopnik clarifies what's missing in these two books. He presents a clearer, harder stance that many Americans do feel, morally, but don't articulate or apply to their politics. But they should. Especially beyond how media frames America's "problems."
What we're seeing right now in the brokenness and dysfunction of the Republican House majority, is just the symptom of the problems of democracy that Americans can't quite put their finger on when they vote.
Sure, dark money oligarchs are chipping away, using their foundations, networks, media, manufactured culture war 'crises,' 'budget crises,' and their elected tools at state & federal levels. And sure, tech firms are deciding whether or not to make a buck in allowing divisive misinformation and AI disinformation on their platforms.
This time Americans might vote to preserve their "idea of America" in 2024, even as they know they can't see behind the corporate/autocratic/fascist curtain or even stop who's paying for and justifying the demolition of their state and federal democratic structures.
But they're still buying Biden's framework that "America is an idea." Gopnick goes one better when he buys the frame of the American idea as the scale and strength of the "social/civic bargain."
The social/civic bargain clarifies deeply held beliefs that we and Biden need to promote, front and center, in the war for "America as an idea," democracy, and rule of law.
Excerpts (bolding what seems key):
The devil may or may not be in the details, but hope lies in the cracks and crevices of our ideologies. Its where the light gets in.
A deeper problem arises from Richardsons conflation of liberalism in the partisan-political sense, meaning the pursuit of a particular set of desirable social programs, and liberalism in the larger sense, as a way of resolving social violence.
There is a sense in the [Manville & Ober] book that the civic bargain can happen, or should happen, through the actual coming together of two sides, who may agree on little but act as citizens and friends to solve their problems and find common ground. This is the men-and-women-of-good-will, serious-people-of-both-sides approach, shared by third way thinkers of all kinds...
A further objection to the happy-together view of democracy is that communal conversation is possible only on a ground already circled by a shared idea of the unacceptable. A conception of criminality is integral to the conception of citizenship. An unspoken precondition of coming to the table is keeping out the cannibals. Lincoln believed that slavery might be bargained overwith an eye to its eventual elimination, but conceivably in stages. Yet he also believed that secession in the pursuit of continuing slavery was a crime, not a negotiating position, and that secessionists should be treated as criminals within the country, not as adversaries outside it. His grand bargain for the nation was not to bargain with those he considered traitors...
Demonizing the other side is a bad idea, but in a healthy democracy the real demons dont get a side. Armed gangs and warlords, who have decided much of human history, dont get a voice. Mussolini ceased to be a politician when he marched on Rome. We have to be prepared to have debates, and to lose, on questions that may at the moment seem to us matters of life and deathon abortion or mass incarceration or gun sanity, say. We are compelled to bargain with people who believe, however crazily, that guns promote social peace.
But when they pull out guns the bargaining ends. A man who brings a machine gun to a Monopoly game is not playing a disruptive form of Monopoly. He is not playing Monopoly.
Laws, in this sense, are the rules on the box that allow real social bargaining to happen. This is what makes Trump, whatever etiology Richardson may rightly claim for him within respectable Republicanism, a very distinctive danger to democracy. To say that Trump presents a mere political challenge is silly: we voted him out, and he refused to go. At that moment, his part in the civic conversation ended, and the rules on the box took over. In this game, there is no Free Parking. The offending player gets to go directly to jail.
Yet the game of democracy cannot be assessed by who wins the round.
Democracy, even of the most direct kind, has always implied some idea of pluralism.
In the Athens of the fifth century B.C.E., Pericles insisted on an ideal of tolerance: There is no exclusiveness in our public life, and in our private business we are not suspicious of one another, nor angry with our neighbor if he does what he likes; we do not even put on sour looks at him which, though harmless, are not pleasant. Cicero, too, is fairly described as a pluralist, if in the more limited sense of accepting an open-ended dialectic as the engine of public life.
Liberal democracy isnt to be saved by attaching it to a particular political or economic program, because this is exactly what it doesnt demand.
John Stuart Mill, the apostle of the liberal order, understood better than anyone that all of social life involves half measures and partial truths, and that committing irrevocably to a single economic program means putting an end to the possibility of using empirical experience to test it. What worked once may not work again. There is much to be said on many sides of a question. The point of democratic governmentas Pericles insisted, Cicero understood, and Mill demonstratedis to make a wary practice of coexistence into a principle of pluralism.
Nor must we go to such heights to see this truth. As Franklin Foer points out in the prologue to his fine new biography of Joe Biden, the President is, like Harry Truman before him, a professional politician, meaning someone who understands instinctively what political theorists have to explicate at lengththat, as Manville and Ober would agree, politics at its best is a set of practices by which a society mediates its differences, allowing for peaceful coexistence.
Elsewhere, Foer calls Biden, affectionately, the old hack that could. A hack, indeed. When democratic practices are in power, they look boringly normal; its startling to realize how fragile they really are, and how hard they are to recover when theyre gone.
Cicero blithely believed that the institutions of the Roman Republic were so strong and long-standing that friends and colleagues like Octavian and Mark Antony couldnt really be capable of ending them. They were.
The successful defense of democracy at times demands a price so high that we tend to have amnesia about it afterward.
Richardson ends with several stirring paragraphs citing rhetoric from the prewar Lincoln about the necessity of fighting for a free and equal nation....But she does not, perhaps, sufficiently emphasize that these words, though originally metaphoric, were tragically prescient of real violence to come. Presented as words to live by, they become, restored to context, a description of the way men came to die. One imagines Ciceros friends among the Romans, similarly, being asked to pledge their heads and hands to the good republican cause. Defending democracy can be a grimmer prospect than it sounds. ?
Atlantic: Why the GOP Extremists Oppose Ukraine -- The budget fight was about vice signaling,
Why the GOP Extremists Oppose UkraineThe budget fight was about vice signaling, not spending.
By Tom Nichols
The Republicans in Congress have delayed a shutdown for another 45 days while they continue their family food fight. They are all very angry with one another, and they seem to agree on only one issue: They hate Matt Gaetz. But dont blame Gaetz, who is clearly having the time of his life being famous. The Republicans, as the economist Michael Strain noted, have for weeks been careening toward a Seinfeld Shutdown, a budget impasse about nothing.
Some $6 billion of aid to Ukraine, however, was removed from the budget, a temporary casualty of the near shutdown. (I say temporary because I have confidence that sensible members of Congress will act to restore the funds.) Republicans are trying to cloak their opposition to military and humanitarian assistance to Ukraine in a lot of codswallop about oversight and budget discipline. But the opposition to aid for Ukraine among Republican extremists on the Hill is not about money...
As is so often the case with modern Republicans, every accusation is a confession, and every assertion is projection. The majority of the countrynot the leftis supporting Ukraine because its the right thing to do, not because they hate Russia for electing Trump. Rather, its the other way around: The MAGA Republicans are opposing Ukraine because they hate Ukraine and its president, Volodymyr Zelensky, for their role in the impeachment drama.
Unlike Vance and his isolationist colleagues, most Americans recognize the immense threat that Russias war of conquest poses to our allies, to global peace, and to the security of the United States itself. Republicans once stood at the forefront of opposition to Kremlin aggressionRonald Reagans steadfast opposition to Moscow was one of the reasons I was a young GOP voter in the 1980sbut now the party is saddled with a group of shortsighted appeasers, buttressed by a squad of right-wing cranks, who would doom tens of millions of innocent people to Russian President Vladimir Putins butchery just to own the libs.
Also, we should not look away from a nauseating truth about the extremist caucus within the GOP: Some of them genuinely admire Putin and what he has created in Russia. Tucker Carlson, after all, didnt get taken off the air for supporting Putin in ways that would have made Cold War Soviet propagandists blush; he got canned after a defamation lawsuit from an election-machine company. These GOP extremists have swallowed the gargantuan lie that Putin is a godly defender of white Christian Europe against the decadent West and its legions of militant drag queens. (They believe this, in part, because they know less than nothing about conditions in Russia or its demography.)
Finally, some Republicans oppose aid to Ukraine because of the more general and bizarre countercultural obsession that has seized the American right: Whatever most of their fellow citizens approve of, they must oppose, or else they risk losing their precious claims to being an embattled minority. If they were to support aid to Ukraine, how would they be different from everyone else, and especially from Biden? How would they mark their tribal loyalty if they crossed party lines to oppose a dictatorwhile supporting a wannabe dictator of their own?
Some Republican opponents of assistance to Ukraine are merely cynical manipulators who care little about national or international security. Many genuinely admire Putin and hope for Ukraines defeat. Others are merely ignorant. But all of them are bound together by the reflexive urge to reject whatever it is that most other Americans accept. As a commenter on social media said to me today, if liberals were opposing aiding the Ukrainian war effort, the GOP would shut down the government to ensure aid and youd see Ukrainian flags waving on the back of pickups.
gift link:
https://www.theatlantic.com/newsletters/archive/2023/10/gop-extremists-house-ukraine-aid/675527/?gift=kSbBcKo3dYuez4NnRbGX-AmnX2Lt8yidZ_QJAqdmw7I&utm_source=copy-link&utm_medium=social&utm_campaign=share
AG Merrick Garland on Rule of Law, Democracy, and the DOJ Rule of Silence On Impending Cases
While we're waiting -- UPDATE -- TIMELINE OF JACK SMITH DC FEDERAL PRE-TRIAL
previous post:
https://www.democraticunderground.com/100218228229
Because the stakes for democracy are high, and because U.S. federal trials (even of historical and national importance) arent televised/broadcast, its important to know -- apart from biased media(tions) -- how our federal courts optimize fairness to, from, and for both plaintiff and defendant.
To that end, the court's schedule and excerpts from some of our sides key docket filings helps us know the overall trial arguments in advance.
Im timelining DC Federal docket filings for now because it's the earlier trial scheduled.
And from a layman's perspective, I'm listing key filings not ruled on yet, and bolding parts for emphasis.
(Future updates in between the DC March trial date & the FL trial date probably won't be necessary, because we'll get as familiar as paralegals with dockets and documents )
Other salient docket additions are welcome.
2.
DC Federal United States v. TRUMP, 1:23-cr-00257, (D.D.C.) March 4 2024
U.S. Dist.(DC) Judge Tanya S. Chutkan E. Barrett Prettyman Courthouse
https://en.wikipedia.org/wiki/Federal_prosecution_of_Donald_Trump_(election_obstruction_case)
-- court docket
https://www.courtlistener.com/docket/67656604/united-states-v-trump/
UPDATE: Docket entries 39 (for pre-trial scheduling), 63 (new hearing re Trump's extrajudicial words and deeds), and 64 (govt evidence of Trump's extrajudicial violations of his bond conditions)
Notes on key DC docket filings (edited for readability):
8/28/2023 Docket Entry # 39:
PRETRIAL ORDER as to DONALD J. TRUMP: Upon consideration of the parties' Proposed Briefing Schedules 23, 30, 32,
the court hereby sets the following pretrial schedule:
1. 10/9/23 -- All pre-trial motions, excluding motions in limine, due...
10/16/2023 -- 10:00 AM hearing on the Smith's filed #57 Protective Order
2. 10/23/23 -- oppositions due, and ...
3. 11/6/23 -- and replies due.
4. 12/27/23 -- Motions in limine and Suppression Motions due, ...
5. 1/9/24 -- oppositions due and ...
6. 1/22/24 -- replies due.
7. 12/4/23 the government (Smith) shall provide notice of evidence it intends to offer pursuant to Fed. R. Evid. 404(b).
8. 12/11/23 Parties shall exchange expert witnesses.
9. 12/18/23 Parties shall exchange exhibit lists and ...
10. 1/3/24 file any objections to exhibits; ...
11. 1/9/24 -- replies due.
12. 1/15/24. Proposed jury instructions and voir dire questions.
13. 2/19/24 Parties shall exchange witness lists .
14. 3/4/24 Trial will commence at 9:30 a.m. in Courtroom 9 unless otherwise specified.
See Order for additional details and instructions.
Signed by Judge Tanya S. Chutkan on 8/28/2023. (zjd) (Entered: 08/28/2023)
9/28/2023 Docket Entry #63
10/16/2023 -- 10:00 AM hearing on the Smith's filed #57 Protective Order
MINUTE ORDER as to DONALD J. TRUMP: The court hereby schedules a hearing on the government's 57 Motion to Ensure that Extrajudicial Statements Do Not Prejudice These Proceedings on October 16, 2023 at 10:00 AM in Courtroom 9.
The requirement of Defendant's appearance is waived for this hearing.
Signed by Judge Tanya S. Chutkan on 9/29/2023. (zjd)
9/29/2023 Docket Entry # 64:
REPLY in Support by USA as to DONALD J. TRUMP re 57 MOTION to Ensure that Extrajudicial Statements Do Not Prejudice these Proceedings (Gaston, Molly)
The need for the proposed order is further evidenced by a review of the defendants
prejudicial statements in the weeks since the Government initially filed its motion on September
5. See ECF No. 47-3. Since that date, the defendant has continued to make statements that pose
a substantial likelihood of material prejudice to this case and that fall within the narrowly tailored
order proposed by the Government. These include:
On September 5, shortly before the Government filed its motion, the defendant posted an
article on the social media platform Truth Social, on which the defendant has more than 6
million followers, making claims about the Court with the sarcastic caption, Oh, Im sure
she will be very fair and an article circulating a false accusation against a Special
Counsels Office prosecutor with the caption, Really corrupt! 3
On September 6, on Truth Social, the defendant issued two posts attacking the former Vice
President, a witness identified in the indictment, in relation to this case, saying that he had
seen the Vice President make up stories about me, which are absolutely false, and that
the witness had gone to the Dark Side; 4
In an interview aired on NBCs Meet the Press on September 17, 5 the defendant answered
questions for more than an hour, and said, among other things:
o That the Georgia Secretary of State, a witness identified in the indictment, recently
said things that he had not, including that the defendant didnt do anything wrong
during a phone call constituting an overt act in the indictment;
o That another witness identified in the indictment, the former Attorney General,
didnt do his job during the charged conspiracy because he was afraid of being
impeached;
3
https://truthsocial.com/@realDonaldTrump/posts/111013216116097929;
https://truthsocial.com/@realDonaldTrump/posts/111013180388667397.
4
https://truthsocial.com/@realDonaldTrump/posts/111019762094553476;
https://truthsocial.com/@realDonaldTrump/posts/111019761485786681.
5
https://www.nbcnews.com/meet-the-press/transcripts/full-transcript-read-meet-the-press-
kristen-welker-interview-trump-rcna104778
page 10 of 22
On September 22, on Truth Social, the defendant falsely claimed that the retiring Chairman
of the Joint Chiefs of Staff, a witness cited in the indictment, had committed treason and
suggested that he should be executed: 6
On September 23, on Truth Social, the defendant re-posted with the caption What a
mess! the false claim that the Georgia Secretary of State knew [of tens of thousands of
fraudulent votes in Georgia in 2020] and covered it up; 7 and
On September 26, on Truth Social, the defendant posted a link to an article singling out a
specific prosecutor in the Special Counsels Office and claiming that the SCO is a team
of Lunatics that are working so hard on creating Election Interference . . . 8
The defendants baseless attacks on the Court and two individual prosecutors not only
could subject them to threatsit also could cause potential jurors to develop views about the
6
https://truthsocial.com/@realDonaldTrump/posts/111111513207332826.
7
https://truthsocial.com/@realDonaldTrump/posts/111112757748267246.
8
https://truthsocial.com/@realDonaldTrump/posts/111133017255697239.
page 11 of 22
propriety of the prosecution, an improper consideration for a juror prior to trial. See Fieger, 2008
WL 474084 at *3-6 (E.D. Mich. Feb. 19, 2008) (magistrate judge imposing an order, adopted in
relevant part by district court, preventing defendant from publicizing, including through
commercials, his claims of improper, selective, or vindictive prosecution because they create the
danger that potential jurors will associate the content of these commercials to this criminal
prosecution of Defendant Fieger. The commercials therefore are substantially likely to materially
prejudice a fair trial even though this pending criminal action is not explicitly mentioned.);
Scrushy, 2004 WL 848221, at *4-*6 & n.5 (N.D. Ala. April 13, 2004) (ordering all trial
participants, including the defendant, to remove from their existing webpages . . . allegations of
prosecutorial misconduct, and ordering the defendant not to use his morning television show
. . . to make statements about the case that his lawyers would be precluded from making by the
Rules of Professional Conduct).
Likewise, the defendants continuing public statements about witnesses are substantially
likely to materially prejudice a fair trial. In his opposition, the defendant makes light of some of
his previous attacks on witnessessome of whom are federal and state government figures in their
own rightby stating that such witnesses do not sh[y] away from a hearty public debate with
[the defendant] and were not intimidated by the defendant, or by implying that government
officials somehow have asked for his attacks because they have made politics, for all its discord
and discourse, a large part of their lives. ECF No. 60 at n.7. Even assuming that certain witnesses
are not intimidated by the defendants statements, other witnesses see and may be affected by what
the defendant does to those who are called to testify in this case. And regardless of whether certain
witnesses are intimidated by the defendants extrajudicial statements, the defendant should not be
Page 12 of 22
permitted to attack or bolster the credibility of any witness in a manner that could influence
prospective jurors.
In addition, the defendants argument essentially concedes that he is trying this case in the
public sphere, not in the courtroom, which is precisely the harm that Rule 57.7(c) is designed to
prevent. The defendant is publicly maligning witnesses and very intentionally commenting on the
specific topics of their potential testimony at trial. In the context of a pending criminal case and
trial, it is not the solution to the defendants improper and prejudicial statements to encourage a
hearty public debate in the media regarding witnesses and the merits of the caseit is the
problem. See Sheppard, 384 U.S. at 351 (legal trials are not like elections, to be won through the
use of the meeting-hall, the radio, and the newspaper and freedom of discussion . . . must not be
allowed to divert the trial from the very purpose of a court system to adjudicate controversies . . .
in the calmness and solemnity of the courtroom according to legal procedures) (internal citations
omitted). From the defendants statements, potential jurors may form improper views about
various witnesses reputations, veracity, or what they will say at trial. The Court can and should
prevent such improper dissemination of information about the substance of this case. Id. at 363;
see also Marshall v. United States, 360 U.S. 310, 312-13 (1959) (prejudice arising from jurors
exposure to evidence from extrajudicial sources can be particularly acute because it is then not
tempered by protective procedures.); United States v. Lindh, 198 F. Supp. 2d 739, 743 (E.D. Va.
2002) (Defendant has no constitutional right to use the media to influence public opinion
concerning his case so as to gain an advantage at trial. No such right inheres in either the Sixth
Amendment right to a public trial, or the publics First Amendment right to a free press.).
Contrary to the defendants claim, the Government is not trying to unconstitutionally
silence the defendant, ECF No. 60 at 2, and the proposed order would have no such effect. Since
Page 13 of 22
the Governments initial filing, beyond the prejudicial examples cited above, the defendant has
made a large volume and wide variety of public statementsthrough social media posts,
interviews, and speechesthat would be unaffected by the proposed order. If the Court entered
the proposed order, it would in no way hinder the defendants ability to campaign and publicly
maintain his innocence. All it would limit is the defendants use of his candidacy as a cover for
making prejudicial public statements about this caseand there is no legitimate need for the
defendant, in the course of his campaign, to attack known witnesses regarding the substance of
their anticipated testimony or otherwise engage in materially prejudicial commentary in violation
of the proposed order.
ii. The Defendants Opposition Misstates the Facts
The defendants opposition makes no attempt to address most of the factual record that the
Government submitted to the Court regarding the defendants history and current practice of using
public statements to target individuals, see ECF No. 57 at 2-13, and instead advances conclusory
statements that the Governments claims are baseless. That is because he cannot explain away the
obvious intent and well-known effect of his words. The single statement that the defendant does
addressin a footnoteis the threatening Truth Social post that he issued on August 4, the day
after his arraignment in this case: IF YOU GO AFTER ME, IM COMING AFTER YOU! The
defendant complains that the Governments motion did not note that after public outcrygiven
the objectively reasonable understanding of the defendants post as a threat related to this case
a spokesperson issued a statement claiming that the defendant had issued the threat in response
to . . . special interest groups and Super PACs. ECF No. 60 at n.8. But the spokespersons after-
the-fact explanation is implausible on its face. The truth is clear: the defendant was caught making
a public threat and then had a spokesperson issue an excuse. As the Court has stated, even
page 14 of 22
arguably ambiguous statements from parties or their counsel, if they could reasonably be
interpreted to intimidate witnesses or to prejudice potential jurors, can threaten the process.
Protective Order Hrg 72 -10. The defendant should not be permitted to obtain the benefits of
his incendiary public statements and then avoid accountability by having otherswhose messages
he knows will receive markedly less attention than his ownfeign retraction. 9 Likewise, no other
criminal defendant would be permitted to issue public statements insinuating that a known witness
in his case should be executed; this defendant should not be, either.
The defendants opposition also makes the self-serving claim that rather than address the
source of the material prejudicethe defendants inflammatory statementsthe Court should
employ alternatives to a Rule 57.7(c) order, such as change of venue, postponement of trial, voir
9
The defendant recently was caught potentially violating his conditions of release, and
tried to walk that back in similar fashion. In particular, on September 25, the defendants campaign
spokesman posted a video of the defendant in the Palmetto State Armory, a Federal Firearms
Licensee in Summerville, South Carolina. The video posted by the spokesman showed the
defendant holding a Glock pistol with the defendants likeness etched into it. The defendant stated,
Ive got to buy one, and posed for pictures with the FFL owners. The defendants spokesman
captioned the video Tweet with the representation that the defendant had purchased the pistol,
exclaiming, President Trump purchases a @GLOCKInc in South Carolina! The spokesman
subsequently deleted the post and retracted his statement, saying that the defendant did not
purchase or take possession of the firearm (a claim directly contradicted by the video showing
the defendant possessing the pistol). See Fox News, Trump campaign walks back claim former
president purchased Glock amid questions about legality (Sept. 25, 2023),
https://www.foxnews.com/politics/trump-campaign-walks-back-claim-former-president-
purchased-glock-amid-questions-about-legality (accessed Sept. 26, 2023). Despite his
spokespersons retraction, the Defendant then re-posted a video of the incident posted by one of
his followers with the caption, MY PRESIDENT Trump just bought a Golden Glock before his
rally in South Carolina after being arrested 4 TIMES in a year.
The defendant either purchased a gun in violation of the law and his conditions of release,
or seeks to benefit from his supporters mistaken belief that he did so. It would be a separate
federal crime, and thus a violation of the defendants conditions of release, for him to purchase a
gun while this felony indictment is pending. See 18 U.S.C. § 922(n).
page 15 of 22
dire, or j[b]ury instructions. ECF No. 60 at 14. But such alternatives are not adequate because they
would not address the source of the prejudice: the defendants repeated efforts to try this case in
the media. The Courts duty here is to implement measures that will prevent the prejudice at its
inception, Sheppard, 384 U.S. at 363, and so long as the defendant persists in making materially
prejudicial statements on social media, in interviews, and in speeches, the defendant will continue
to affect the potential venire for this trial. In addition, the defendants statements have such broad
reach that as long as he makes them, he will taint potential jurors anywhere in the country. See
Gentile, 501 U.S. at 1075 (even [e]xtensive voir dire may not be able to filter out all of the effects
of pretrial publicity, and with increasingly widespread media coverage of criminal trials, a change
of venue may not suffice to undo the effect of [trial participants] statements); Brown, 218 F.3d
at 431 (jury instruction may fail to address threat of carnival atmosphere around trial). Finally,
the alternatives that the defendant suggests the Court consider would have the perverse incentive
of encouraging, rather than curbing, the defendants prejudicial statements. The defendant has,
for instance, already stated publicly that he intends to seek a change of venue in this case. See
ECF No. 57 at 7-8. He should not be permitted to pollute the jury pool in this District with his
prejudicial statements and then seek a change of venue based on the complaint that the venire is
tainted.
The defendant seeks to deflect responsibility for his own prejudicial statements by claiming
that the indictment in this case was false and derogatory and that the Special Counsels brief
statement upon its unsealing was prejudicial because it ascribed to the defendant responsibility for
the events of January 6, 2021which, according to the defendants opposition, the indictment
does not allege. ECF No. 60 at 19-20. The defendant is wrong. First, the indictment, filed in
court, does what indictments are supposed to do: set forth the criminal charges against the
page 16 of 22
defendant and give notice of the factual allegations that underpin them. The defendant provides
no support for his claim that the indictment can be a source of unfair prejudice herebecause there
is no such support. And second, the indictment does in fact clearly link the defendant and his
actions to the events of January 6. It allegesand at trial, the Government will provethe
following:
The defendants criminal conspiracies targeted, in part, the January 6 certification and
capitalized on the widespread mistrust the [d]efendant was creating through pervasive
and destabilizing lies about election fraud, ECF No. 1 at ¶4.
In advance of January 6, the defendant urged his supporters to travel to Washington
on the day of the certification proceeding, tweeting, Big protest in D.C. on January
6th. Be there, will be wild!, id. at ¶87. He then set the false expectation that the
Vice President had the authority to and might use his ceremonial role at the certification
proceeding to reverse the election outcome in [his] favor, id. at ¶96.
Then, despite his awareness that the crowd [ ] on January 6 was going to be angry,
id. at ¶98, on the morning of January 6, the defendant decided to single out the Vice
President in public remarks, id. at ¶102, and repeated knowingly false claims of
election fraud to gathered supporters, falsely told them that the Vice President had the
authority to and might alter the election results, and directed them to the Capitol to
obstruct the certification proceeding and exert pressure on the Vice President to take
the fraudulent actions he had previously refused, id. at ¶10d.
Finally, on the afternoon of January 6, after a large and angry crowdincluding many
individuals whom the [d]efendant had deceived into believing the Vice President could
and might change the election resultsviolently attacked the Capitol and halted the
proceeding, the defendant exploited the disruption in furtherance of his efforts to
obstruct the certification, id. at ¶10e.
In short, the indictment alleges that the defendants actions, including his campaign of knowingly
false claims of election fraud, led to the events of January 6.
The defendants motion also attempts to downplay defense counsels clear violations of
Rule 57.7(b), and appears to suggest that the defendants attorneys reserve the right to violate that
Rule in the future. See ECF No. 60 at 19-22. But it is uncontroverted that, on multiple occasions
in the week following the unsealing of the indictment, defense counsel appeared on media
page 17 of 22
programs and talked extensively about this case, including on topics that Rule 57.7(b) prohibits
attorneys from discussing. See ECF No. 57 at 16 (citing Rule 57.7(b) and linking to lead counsels
appearances). The defendants opposition then complains that the Court would render his
attorneys inadequate if it were to restrict them from further public statements through the
Governments proposed 57.7(c) order, but fails to recognize that most of its terms mirror existing
restrictions on all attorneys practicing in this District under Local Criminal Rule 57.7(b). Compare
Local Criminal Rule 57.7(b) (prohibiting attorneys from making extrajudicial statements
regarding, among other things, the identity, testimony, or credibility of prospective witnesses)
with ECF No. 57-2 (same, with prohibition on disparaging and inflammatory or intimidating
statements about parties, witnesses, attorneys, court personnel, or potential jurors).
Finally, the defendants opposition makes faulty claims about the scope and applicability
of the proposed order. In addition to making inaccurate claims about the proposed orders breadth,
see ECF No. 60 at 17, the defendant suggests that the Government seeks to prevent the defendant
from redress[ing] the unfairness of this proceeding through legitimate means including for
example, filing motions with the Court. ECF No. 60 at 10-11. But nothing in the proposed order
prevents the defendant from doing sorather, it explicitly states that he can. See ECF No. 57-2
at 1-2 (order does not preclude the defendant or his attorneys, agents, or others acting on his
behalf from (a) quoting or referring without comment to public records of the court in the case).
Similarly, the defendants opposition states that the prosecution seeks only to bar [the defendant]
from speaking. ECF No. 60 at 13. Not so. The proposed order applies to all partiesincluding
the Government. But the defendants allegation here is telling, in that it highlights that the
defendantand no other partyis making materially prejudicial public statements in this case
the Government has proposed that the Court enter an order with five
reasonable conditions:
(1) any partywhether the Government or the defendantmust notify the
Court ex parte before the party or any individual or entity acting at the partys direction or under
the partys control undertakes any jury study in the District of Columbia;
(2) the notice must include a brief description of the intended methodology, all questions to be asked, and the expected
Page 19 of 22
number of participants;
(3) the party cannot begin the jury study, or use any results from it, absent
the Courts approval, which may be conditioned on editing or removing portions of the intended
jury study that threaten to materially prejudice the jury pool;
(4) the jury study must be completed
30 days before the start of jury selection; and
(5) the party must maintain the names and addresses
of the study participants and provide that information to the Court at least two weeks prior to jury
selection. See ECF No. 57-3. The defendant objects to every one of these provisions. 10
First, the defendant posits that jury studies and polling have almost no chance of
influencing the jury, noting that Washington D.C. has almost 700,000 residents and [a]
statistically significant sample size would ordinarily include only a few hundred people. ECF
No. 60 at 23. But the size of the jury pool is immaterial; indeed, the Governments motion cites
to a standing order on jury studies in a Division of the Eastern District of Texas with a population
exceeding that of this District. See ECF No. 57 at 19 (citing Judge Clarks standing order in the
Beaumont and Lufkin Divisions); https://www.census.gov/library/stories/state-by-state/texas-
population-change-between-census-decade.html (estimating the 2020 population of the counties
comprising the Division to be approximately 832,000). In addition, nothing would prevent the
defendant from creating and implementing a biased jury study and then publicizing its resultsor
answers to specific, slanted questionson a widespread basis to the entire potential jury pool. The
Court should exercise its discretion to protect against such prejudice by taking the simple step of
reviewing the proposal ex parte.
10
The defendant objects to the Governments proposal, but has no objection to informing
the Court of the dates and sample sizes of his polling in the District of Columbia. ECF No. 60 at
23. The defendants alternative, however, would not address the potential tangible harm
materially prejudicing the jury poolposed by inappropriate studies.
Page 20 of 22
Second, the defendant suggests that no Court regulation is needed because the purpose of
polling and jury studies is not to influence respondents, but to get a true read on the communitys
opinions or feelings on certain issues. ECF No. 60 at 23. But in practice, jury studies, like other
polls, may be skewed to influence the participants or shape the results. See Ellen Kreitzberg &
Mary Procaccio-Flowers, Jury Selection: The Law, Art & Science of Selecting a Jury § 3:4 (2002)
(Providing respondents with a misleading description of the facts may produce responses that are
pleasing to the client, but will be useless in providing insight into the reactions of the jurors who
will hear the whole truth during trial.). 11 Because skewed studies could influence potential jurors,
the questions should be subject to review by the Court. See Brewer v. Lennox Hearth Prods., LLC,
601 S.W.3d 704, 726 (Tex. 2020) (A campaign of disinformation, in whatever form, undermines
the sanctity of the judicial process and is inimical to the constitutional promise of a fair and
impartial jury trial.).
Third, the defendant objects to a requirement that any jury study be concluded 30 days
before trial because polling is most valuable if conducted close to trial. ECF No. 60 at 24. Yet
at the status hearing one month ago, defense counsel suggested the defendant would likely need
to do it sooner rather than later, Transcript of Status Hearing, at 59 (Aug. 28, 2023), in reference
to polling for a Rule 26 motion, the filing deadline for which is October 9, 2023. See ECF No. 39
at ¶2 (setting deadline for [a]ll other pre-trial motions, excluding motions in limine). In any
11
While in office, the defendant provided an example of one type of distorted polling the
proposed order seeks to prevent: A poll should be done on which is the more dishonest and
deceitful newspaper, the Failing New York Times or the Amazon (lobbyist) Washington Post!
They are both a disgrace to our County, the Enemy of the People, but I just cant seem to figure
out which is worse? See Trump Tweet, June 16, 2019, 9:39:22 EST, available at
https://www.thetrumparchive.com/ (last visited Sept. 27, 2023).
page 21 of 22
event, the proposed 30-day limit creates a reasonable buffer that would reduce the potential impact
of any jury study on the venire. See Brewer, 601 S.W.3d at 726.
Fourth, relying on Blankenship v. Fox News Network, LLC, No. 2:19-cv-00236, 2020 WL
7225765, at *1 n.3 (S.D.W. Va. Dec. 8, 2020), the defendant contends that polls and jury studies
commissioned by defense counsel are work product and some parts, if not all, are attorney-client
privileged. ECF No. 60 at 23. That inapposite case, though, dealt with a civil subpoena seeking
all documents and communications that underlie these investigations as well as analyses carried
out on Plaintiffs behalf and documents and communications between Plaintiff and his attorneys
and [the jury consulting company] pertaining to the criminal trial. Id. at *2. Here, the proposed
order addresses a far more limited set of informationa brief description of the intended
methodology. . . all questions that will be asked. . . [and] the expected number of participants, as
well as the participants names and addresses. ECF No. 57-3 at 1-2. Assuming any privileges
applied to such information, they would dissipate when the questions to be asked were actually
asked of the participants. In other words, the parties cannot shield from the Court, on privilege
grounds, the questions they intend to broadcast to hundreds, if not thousands, of District residents.
page 22 of 22
The rationale for the proposed order is to protect the integrity of the trial and the jury pool,
and the regulations it would impose are modest. The defendants complaints are unfounded, and
the Court should exercise its discretion to enter the order.
III. Conclusion
Through both of its proposed orders, the Government seeks appropriate processes for
protecting the jury pool in this case and the integrity of this proceeding. The Court should grant
the Governments motion and enter them.
Respectfully submitted,
JACK SMITH
Special Counsel
By: /s/Molly Gaston
Molly Gaston
Thomas P. Windom
Senior Assistant Special Counsels
950 Pennsylvania Avenue NW
Room B-206
Washington, D.C. 20530
Readings:
https://en.wikipedia.org/wiki/Innominate_jury
Carl Sagan -- Cosmos: A Personal Voyage
Perspective is work. It requires the will to do good work that outlives us.
"...The surface of the Earth is the shore of the cosmic ocean. On this shore we've learned most of what we know. Recently we've waded a little way out, maybe ankle deep, and the water seems inviting. Some part of our being knows this is where we came from..."
Mehdi Hasan Contributes A Campaign Ad For Biden 2024
Trump's fantasyland of "monsters" trying to steal his 2024 election:
-- President Joe Biden:"Biden is a criminal... the most corrupt and incompetent president in US history!"
-- Judge Chutkan:
"This political hack judge must be stopped!"
-- General Mark Milley:
Mark Milleys phone call to reassure China in the aftermath of the storming of the Capitol on January 6, 2021, was
an act so egregious that, in times gone by, the punishment would have been DEATH.
(The phone call was, in fact, explicitly authorized by Trump-administration officials.)
-- Judge Arthur Engoron:
"His name is Arthur Engoron, & he is a vicious, biased, and mean 'rubber stamp' for the Communist takeover of the great & prosperous American company that I have built over a long period of years ... 'He was appointed by my worst enemies. Case was to go to a new Judge, but he demands to keep it. I have no jury or Civil Rights!"
-- New York AG Letitia James:
The only person who may be worse than weak on violent crime A.G. Letitia 'Peekaboo' James, is the Judge we have on her ridiculous & highly partisan case against me & my family,'
-- Manhattan DA Alvin Bragg:
"...A Soros backed animal...What kind of person can charge another person ... Only a degenerate psychopath that truly hates the USA! EVERYBODY KNOWS IM 100% INNOCENT, INCLUDING BRAGG, BUT HE DOESNT CARE. HE IS JUST CARRYING OUT THE PLANS OF THE RADICAL LEFT LUNATICS. OUR COUNTRY IS BEING DESTROYED, AS THEY TELL US TO BE PEACEFUL!
-- Fulton County, GA DA Fani Willis:
"The people that tampered with it were the ones that rigged it, and sadly, phoney [sic] Fani Willis, who has shockingly allowed Atlanta to become one of the most dangerous cities anywhere in the world, has no interest in seeing the massive amount of evidence available, or finding out who these people that committed this crime are."
-- DOJ Special Counsel Jack Smith:
No matter the frequency of Trump's attacks, neither he nor his cult will stop the scale of Rule of Law and Reality, where his Fantasyland of Monsters will introduce him to both.
Donald Trump's day so far:
- Loses New York fraud trial
- Massive financial penalties incoming
- Goodbye Trump Org!
- Trump's NY business licenses being revoked
- Four Trump criminal trials still coming
- Trump is going to prison
It's still only 5:30 pm.
Trump's life so far:
100 Years of Star Wars -- An AI Production, Or AI Madness
100% scary, but shows you where AI proponents are at in taking over the industry.
Profile Information
Gender: Do not displayHometown: New England, The South, Midwest
Home country: USA
Current location: Sarasota
Member since: Sat Mar 5, 2011, 12:32 PM
Number of posts: 36,137